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Sect 106(1) Reproduction Right Subject to sections 107 through 120 [17 USCS Sects. 107-120], the owner of copyright under this title [17 USCS Sects. 101 et seq.] has the exclusive rights to do and to authorize any of the following:[17 USCS Sects. 107-120] (1) to reproduce the copyrighted work in copies or phonorecords;

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Proof of Copying Price v. Fox Price v. Fox zFacts? zOwnership established zSimilarity “After examining both works and reading the evidence in the light most favorable to plaintiffs, I conclude that a jury could reasonably find that the two works contain similarities that are probative of copying.” plot similarities, character names and characteristics zReasonable possibility of access through a particular chain of events or link : “…a reasonable jury could conclude that there is a reasonable possibility that Thurber had access to the Thomas Work given the evidence of xthe speed at which he wrote his screenplay, xthe timing of the appearances of certain similarities between the two works, and xthe relationships he had with WMA employees who either actually had access or had a reasonable possibility of access to the Thomas Work.”

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Circumstantial proof of copying zHow Deep is Your Love? (Selle v. Gibb) 7 th Circuit v.How Deep is Your Love zFeelings (Gaste v. Kaiserman) 2d CircuitFeelings zPhantom Song (Repp v. Webber) and Ty’s Squealer yResolved by Judge Posner in Ty: This discussion shows how the tension between Gaste and Selle can be resolved and the true relation between similarity and access expressed. Access (and copying) may be inferred when two works are so similar to each other and not to anything in the public domain that it is likely that the creator of the second work copied the first, but the inference can be rebutted by disproving access or otherwise showing independent creation— zCelebrity v. Survivor yEven if copying were shown, defendants …copied no more than elements typical to the genre… ?

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Proving that copying infringed: improper appropriation zDoes “substantial similarity” imply copying of a substantial amount of material? De Minimis and copyright –three approaches 1.Trivial infringement 2.Insufficient quantify of expression taken to satisfy the third element of the p.f. case- not improper appropriation 3.Part of fair use zChurch Picnic, Silver Slugger, Beastie Boys and the Bridgeport rule zPeter Pan test for improper appropriation y“…the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.”

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Nichols v. Universal– the abstractions test. yFacts xP author of play Abie’s Irish Rose Religion, twins and multiple marriage xD produced Cohens and the Kellys Money, inheritance, marriage and twins y“The right cannot be limited literally to the text else a plagiarist would escape by immaterial variations.” xBlock in situ- fragmented literal similarity xAbstract of the whole- comprehensive nonliteral similarity x“Upon any work ***a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out ySkeleton – expression/idea yCharacters – more development = more protection yApplication of these principles-- infringing copying??